Might Judges Force Couples Out Court?
By Tim Melville-Walker, MacDonald Oates LLP
There was a very significant change to the structure of the family courts in April 2014 – indeed, the biggest change in a generation. The previous 3 levels of the family court were all merged into 1 and there were widespread changes to the forms and rules as a result.
One of the big changes was to make family mediation information and assessment meetings (MIAMs) compulsory in most cases, before the matter can actually be taken to court. The purpose of the MIAM is actually to give parties information about the alternatives to court and the advantages of resolving matters outside of the court.
Linked to this is rule 3.3 of the Family Procedure Rules, which provides that the court
“…. must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate”.
Rule 3.4 also makes it clear the court have the power to adjourn proceedings to “enable” the parties to obtain information and advice about non-court dispute resolution.
The various means of non-court resolution – mediation, collaborative law, family law arbitration and others – do have many advantages, which can include speed, cost and, most importantly, the fact that the parties have largely found their own solution. However commentators have wondered if this will lead to parties being effectively forced to resolve disputes themselves and whether this is a violation of the fundamental right to have matters decided by a court.
Courts are under more pressure than ever – substantial budget cuts combined with the huge rise of unrepresented parties (primarily resulting from the effective abolition of family legal aid for most matters) certainly gives the court an incentive to encourage matters elsewhere. However the rules do not allow the court to actually force anyone to resolve matters themselves, though it would be naïve to pretend they cannot apply enormous pressure. Certainly anecdotal reports suggest that anybody who has not undertake a MIAM, save in exceptional circumstances, is certainly risking incurring the displeasure of the court.
If you have any questions arising from this article, please do feel free to contact any member of the group – you can find contact details on the group page, http://www.collaborativelawgroup.co.uk/content/group-zero.